The First Amendment is dead; long live the First Amendment

When AK shoots from the lip, life is never boring. One friend likes his fiercely libertarian instincts, another his mercurial contrarian attitudes – I have always been a fan of his provocative First Amendment scholarship and decisions (one of the classic articles on the doctrine of commercial speech is Kozinski and Stuart Banner “Who’s Afraid of Commercial Speech?” 76 Virginia Law Review 627 (1990) (pdf); see also their sequel “The Anti-History and Pre-History of Commercial Speech” 71 Texas Law Review 747 (1993) (pdf); summary here).

Last week, he made speech theory life very interesting indeed. Delivering an address at a Pepperdine University School of Law Sympoisum on Free Speech & Press in the Modern Age – Can 20th Century Theory Bear the Weight of 21st Century Demands?, AK argued that the First Amendment is dead! In a summary provided by Roger Alford on Opinio Juris (also Legal Blog Watch | First Amendment Law Prof Blog), in a speech entitled “The Late, Great First Amendment”, the essence of what AK had to say was that

in a day when Internet speech is not capable of suppression, the ability of the First Amendment to have a moderating effect is now gone. What use does a constitutional limitation have on government restrictions on speech when the government no longer has the ability to control speech?

Kozinski argued that today we live in an age when whistleblowers are unknowable, documents are leaked without consequence, blogger journalists are anonymous and judgment proof, and the mainstream media is in financial peril. Any attempts to restrict speech results in that speech replicated a thousand times over. As such, the First Amendment jurisprudence that we cherish so dearly is now obsolete. …

Kozinski clearly was alarmed by what the Internet has wrought. … [And he] concluded by saying that we may disagree about whether this new world is better or worse, but there is no question that it is different. The First Amendment presumes that the government has the motive and the means to suppress speech. That no longer holds true today. We live in an age of the late, great First Amendment.

I look forward the to the publication of the full text in the Pepperdine Law Review, but in the meantime I shall content myself with Alford’s summary. For all sorts of reasons, AK’s are provocative views, and were no doubt intended to be; and though I concede that there is something to it, I am certain that he has – not for the first time – overstated the point.

It certainly cannot be the case that the First Amendment is actually dead – indeed, in the Roommates case (pdf) decided earlier the same week, he declined to take a First Amendment point not because it is dead but merely because it hadn’t been properly pleaded (see n40). More to the point, there are still lots of examples of weird and wonderful First Amendment arguments being made (see yesterday’s post for a particularly outrageous example), and an important obscenity case is pending before the US Supreme Court.

Nevertheless, AK does have a point that the internet has created a great deal more speech, and has made it much harder for government to restrict it. Much harder, yes; but not impossible. Step forward the infamous Yahoo! France litigation, or the GreatFirewallofChina. The technology that creates all that extra speech can be used to suppress most of it. Of course, that means that there will be more evaders’ technology to get around the government’s technology; and more government technology to get around the evaders’ technology; and so on in a technological speech race. But the practical effect of this is that, in the face of determined state action, it is only the speech of the technologically advanced that can evade government restriction. Now, I’m all for free speech for geeks. But – as the badges in the right tool bar, level with this line, suggest – I’m for free speech for the rest of us too. And the protection offered by the First Amendment (and equivalent constitutional provisions the world over) is just what we need.

Moreover, people still meet in the real world, still publish on paper and broadcast on television and radio, still congregate in public fora, still hand out handbills, still protest on streets, still burn flags, and still wear t-shirts with slogans – for all that I can say and do online, I still speak, and so does AK: it wasn’t a stream of electrons from California to Florida which delivered his provocative speech, he spoke in person at the symposium. And I am sure that he would be the first to agree that, even if he could put his speech on an offshore server outside the reach of the long arm of the US government, he should not have been prevented by state action from delivering it, in person, at the symposium.

In the end, therefore, whilst for Alex Kozinski, there may be an innovative technological solution, for everyone else, there’s a time-honoured constitutional one. Long live the First Amendment!

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